Right now we have a number of IRP appeals in BC Supreme Court to deal with ongoing problems with the Immediate Roadside Prohibition law.
When the Sivia decision came out almost 4 years ago we concluded that the best we could do was to chip away at the IRP sections of the Motor Vehicle Act to reveal the unfairness in the scheme.
Nobody should be subject to a determination of their sobriety and face punishment based on a device that has a probable manufacturing flaw.
We recognized the unfairness when the law was introduced. Our concern has been that a mere review of the legislation in a constitutional challenge would never reveal the abhorrent way that an IRP can play out.
Of course after Sivia the Government made some minor changes to the law to allow applicants to argue a few other things, such as innocence. Then the second version of the law was challenged in Bro and the BC Supreme Court found it constitutional. It wasn’t that it’s a good law or that it’s necessarily fair for many people, but the changes to the law took it far enough away from the problems in Sivia that it no longer violated the constitution.
Since the Bro decision we’ve noticed a clawing back by the Government on many fronts. Essentially they’ve been trying to implement a more Sivia-like version of the law.
The third version of the law was passed in Bill 15. The new legislation was passed in spring 2015 but to date it hasn’t been written into the Motor Vehicle Act. We assume that the Government is planning on putting it in within days of getting a ruling from the Supreme Court of Canada. We think that it’s a covert action intended to slip in a new unconstitutional version of the law into the Motor Vehicle Act when nobody is looking.
We’re watching what they’re doing and we’re making plans to challenge the newest version of the IRP law. In the meantime we have a number of IRP Appeals in BC Supreme Court which we are strategically advancing with larger goals in mind.
The Red Alert
Back in December 2014 we issued a Red Alert to everyone who received an IRP but missed the 7-day filing period. RoadSafetyBC send out 25 letters to lawyers in BC telling them that as of January 12, 2015, they would no longer consider Segers applications.
A Segers application is a request for late filing of an Application for Review in an IRP. So if you missed the 7-day window to file, you could write to the Government to ask for an extension of the time-to-file period based on the test in the Segers case.
Why would cases where people missed the 7 days suddenly become such a problem for the Government?
It turns out that very few people miss the 7-day window to file for review and those who don’t file usually assume that there’s no hope of success at the hearing. They assume that it’s an open and shut case. So Segers applications were barely an issue. Until we pointed out that defective ASDs had been used for years.
Defective ASDs and Segers
When we first revealed the defective breathalyzer issue to the Government and police, we thought that they would stop using the defective devices. They did for a few weeks. Then the story didn’t get traction in the media and soon we saw the defective devices put back into service.
We decided at that point that, if they weren’t going to do something, we would use the information we gathered for our clients and we also started a lawsuit in Federal Court against the RCMP to stop them from using these devices.
Our goal at the time was just to stop the police in BC from using defective breathalyzers. Obviously simply notifying them hadn’t been enough, so we acted on the information we had by running this argument in IRP hearings. That worked. New breathalyzers were purchased very rapidly and by the end of January this year almost all of the defective breathalyzers were pulled from service.
At the very least we accomplished that goal which was for the protection of the public. Nobody should be subject to a determination of their sobriety and face punishment based on a device that has a probable manufacturing flaw.
What about Segers?
It seemed to us that many people missed filing their Application for Review because they believed they had no chance at their IRP hearing. Had they known that they blew into a defective breathalyzer, many if not most people would have filed for review. But that evidence wasn’t available to them in the 7-day window to file for review.
It’s only fair that the 7-day period should be extended for anyone who blew into an ASD breathalyzer from the defective batch. The evidence of the defective ASDs was new evidence that was not available to people when they made the decision not to file for review.
Somebody in the Government realized that they could limit their potential liability by making it so people who didn’t file for review in the 7-day window could never get their money back. The easy way to do this was to no longer accept Segers applications.
The Red Alert
So now you know why we issued the Red Alert a year ago. We wanted to ensure that as many people as possible will get a remedy, if there is one, when the fallout of the defective breathalyzer debacle has cleared.
We were thinking ahead.
The state of Segers now
Last week Kyla Lee went to BC Supreme Court to challenge the decision of RoadSafetyBC wherein RoadSafetyBC decided unilaterally to stop accepting Segers applications.
In this group of IRP Appeals in BC Supreme Court we felt it was important to start with that. We think that the first part of the hearing went well. Unfortunately, however, we ran out of court time so the arguments haven’t been completed.
Where we’re headed with the IRP Appeals in BC Supreme Court
Our concern is that RoadSafetyBC is implementing policies designed to impede access to justice. RoadSafetyBC can make the scheme even less fair than it already is by issuing dictates that would likely never be the subject of a review in any BC Supreme Court hearing on the constitutional validity of the law. Nevertheless, the pattern emerges for the Court in various IRP appeals and ultimately the Court will render more decisions that place restrictions on how the Government can deal with people.
Acumen Law conducting IRP appeals
These strategic appeals, like the Wilson case, are being paid for by us out of our own pockets either entirely or mostly. We’re doing it because we believe that we should all be fighting for fairness in the justice system.
IRPs happen to be our corner of the justice system. We feel that we have an obligation to correct the unfairness we see.